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Judgment
P.R. Shivakumar, J.—Heard both sides.
This is an appeal preferred by the management against the order of the Commissioner for Workmen''s Compensation/Deputy Commissioner of Labour, Salem made in W.C. No. 464 of 1999 awarding a sum of Rs. 72,178 as compensation. The said award directed the appellant herein to pay the said amount along with interest at the rate of 12 per cent per annum from the date of accident till the date of deposit.
The claim was made based on the contention that respondent herein sustained injuries leading to permanent disability pursuant to an accident that took place out of and during the course of employment while serving as a driver under appellant. According to respondent''s case, the bus in which he was working as a driver, broke down as one of its wheel was flattened and while he was engaged in bringing down the spare wheel for changing the flattened wheel, he fell down and sustained injuries including tear in the hip membrane. Contending that the same resulted in permanent disability, the respondent herein made the claim before the Commissioner for Workmen''s Compensation against the appellant management. He had claimed a sum of Rs. 1,00,000 as compensation.
The claim was resisted by appellant herein/opposite party contending that the accident and the injuries sustained by the respondent-applicant were not true. It was also contended that pursuant to a medical opinion issued by the Medical Board on 2.5.1995, the respondent-applicant was discharged from service w.e.f. 2.7.95 and that due to a subsequent settlement arrived at u/s 18(1) of the Industrial Disputes Act, an alternate employment was offered to him, but the respondent-applicant later on changed his mind and declined the offer made for providing him alternate employment. It was the further contention before the Commissioner for Workmen''s Compensation that since the respondent-applicant continued in service for a period of 5 years prior to the date of his discharge on medical grounds, respondent-applicant was not entitled to any compensation under the Workmen''s Compensation Act for the injuries sustained by him in the accident that took place on 23.7.1990.
The Commissioner for Workmen''s Compensation conducted enquiry wherein both parties led evidence in support of their respective contentions. After considering the evidence, the Commissioner for Workmen''s Compensation held that respondent-applicant sustained an injury in the accident that took place on 23.7.1990 and the said injury resulted in 100 per cent permanent disability. It was also held that no concrete evidence was forthcoming from either side regarding the wages drawn by respondent-applicant at the time of accident and hence the minimum wages applicable to the drivers as on the date of accident was taken as the wages for computation of compensation. Taking the age of the respondent-applicant to be 44 years as on the date of accident, 172.52 was selected as the relevant factor and as per the formula a sum of Rs. 72,178 was arrived at as the compensation to which the respondent-applicant was entitled. The said amount was directed to be deposited within 30 days from the date of receipt of the order with a default clause that in case of default the same shall carry an interest at the rate of 12 per cent from the date of accident till the date of deposit.
Aggrieved by and challenging the said order dated 16.4.2001 passed by the Commissioner for Workmen''s Compensation, Salem, the appellant management has brought forth this appeal u/s 30 of the Workmen''s Compensation Act. At the time of admission of this appeal, the following three questions were framed as substantial questions of law involved in the appeal:
(1) Whether lower authority is justified in awarding Rs. 72,178 as compensation?
(2) Whether lower authority is justified in fixing the monthly income at Rs. 826.75 in the absence of any supporting document?
(3) Whether the lower authority is justified in entertaining the application under W.C. Case No. 464 of 1999 when the workman raised an industrial dispute in I.D. No. 155 of 1999, before the Labour Court, Salem?
this Court has heard the arguments advanced by Mr. T. Chandrasekaran, the learned Counsel for the appellant and Mr. K.V. Shanmuganathan, learned Counsel for the respondent and also perused the materials available on record.
An appeal against the order passed by the Commissioner for Workmen''s Compensation shall lie to the High Court only on a substantial question of law. The first question framed at the time of admission of appeal, to my considered opinion, is not a substantial question of law. It simply deals with the quantum of compensation to which the respondent-applicant is entitled. The same can never be a substantial question of law, unless there is any patent error in the application of the provision prescribing how the compensation is to be computed. In this case, the Commissioner for Workmen''s Compensation has correctly selected the relevant factor after fixing the age of the workman and calculated the compensation using the formula prescribed in Section 4 of Workmen''s Compensation Act. this Court does not find any defect in the procedure adopted by the Commissioner for Workmen''s Compensation for computing the compensation.
So far as the second question framed at the time of admission is concerned, this Court is at a loss to understand how the appellant management is aggrieved by the adoption of minimum wages as monthly remuneration. In fact, appellant management is in a better position than the workman to produce the documents relating to the wages earned by the workman as on the date of accident. It is pertinent to note that the appellant management failed to produce any document to show what was the wages earned by the respondent-applicant as on the date of accident. However, finding fault with the respondent-applicant also for not having produced any document to substantiate his contention that he was drawing a salary of Rs. 3,500, the Commissioner for Workmen''s Compensation has adopted minimum wages applicable to heavy vehicle drivers as the salary of the respondent-applicant. It is common sense that the management is legally prohibited from paying lesser amount than the minimum wages. It is more probable that the management would have paid even more than the minimum wages. The Commissioner for Workmen''s Compensation has adopted only the minimum wages regarding which the appellant cannot be allowed to complain. Therefore, the second question framed as the substantial question of law at the time of admission also has to be answered against the appellant and in favour of the respondent-applicant.
Third question framed at the time of admission is, "whether the respondent-applicant can maintain a claim under the Workmen''s Compensation Act, while prosecuting the industrial dispute in I.D. No. 155 of 1999 before the Labour Court at Salem raised by him against his discharge from service on medical grounds?" The scope of a claim for compensation under Workmen''s Compensation Act is different from the scope of an industrial dispute raised complaining non-employment. The industrial dispute raised by the respondent-applicant against the order of discharge made by the management, five years after the accident in question, has nothing to do with the claim made under the Workmen''s Compensation Act for compensation for the permanent disability caused by the injuries sustained in the course of employment. It is not the case of the management that respondent did not meet with any such accident or that the accident did not result in permanent disablement. On the other hand, the management itself discharged him on medical grounds. The said act of the management makes it obvious that the injuries sustained by him in the accident in question had led to the permanent disability complained of. Legally, there cannot be any bar for claiming compensation under the Workmen''s Compensation Act for the permanent disability, simply because the subsequent non-employment has been challenged in an industrial dispute before the competent forum, namely, the labour court in this case. Therefore, the third substantial question framed at the time of admission has got to be answered against the appellant and in favour of respondent-applicant.
Learned Counsel for the appellant submitted that pursuant to the decision taken by the management to discharge the respondent on medical grounds based on the report of the Medical Board, a settlement u/s 18(1) of the Industrial Disputes Act was arrived at in which it was agreed the respondent-applicant would be provided with an alternate employment and that subsequently the respondent-applicant did not honour the settlement and declined the offer made by the management. The learned Counsel for the appellant contended further that in view of the offer made by the management to provide alternate employment without loss of wages, it should be presumed that there was no loss of earning capacity and hence the respondent was not entitled to any compensation under the Workmen''s Compensation Act. In this regard, learned Counsel for the respondent drawing the attention of this Court to the judgment of this Court in Tamil Nadu Cements Corporation Ltd. v. N. Jayapalan (1993) 2 MLJ 363, argued that the fact that the workman was allowed to continue in the very same post without any loss of wages or that an alternate employment was provided without any reduction in rank or loss of wages would not disentitle such a workman from claiming compensation under the Workmen''s Compensation Act for the employment injuries sustained by him. In the above cited case, this Court has observed that merely because the employer pays the same salary to the workman, it cannot be stated that there is no loss of earning capacity and that if the law were to be so, the employer can easily evade the provisions of the Act by continuing employment on the same terms were enjoyed by the workman prior to the accident. The said judgment of this Court was later on followed by Andhra Pradesh High Court in Lingampalli Rajam v. Colliery Manager, Morgan''s Pit, Singareni Collieries Co. Ltd. 2001 ACJ 350 (AP).
In this regard, Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is worth mentioning. The said provision runs as follows:
Non-discrimination in government employment.--(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
By the said enactment the right of an employee who sustains employment injuries resulting in disability not to be reduced in rank or to be discharged from service has become a statutory right and in cases wherein he is found to be unfit to the post he was holding prior to the accident, he should be accommodated in an alternate post and until such suitable post is found to accommodate the employee, he may be kept on a supernumerary post without any reduction in salary. There is no provision either in the said Act or in the Workmen''s Compensation Act to the effect that when an alternate employment is provided by virtue of Section 47 of the said Act, such a workman will be disentitled to claim any compensation for the disabilities suffered by him during the course of his employment. Therefore, the above said contentions raised by learned Counsel for the appellant also has got to be discountenanced.
For all the reasons stated above, this Court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed. Accordingly, the appeal is dismissed. However, there shall be no order as to costs.